Jacek Smigelski v. Stanley Kosiorek, Individually and Executor of the Estate of Stanislaw Kosiorek (2012)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, # 116

“This is the fourth action to spawn from a lawsuit entitled Wisniewski v. Kosiorek, Superior Court, judicial district of New Britain, Docket No. CV 04 4000453, in which [the plaintiff] Smigelski represented [the defendant] Kosiorek as executor of the estate of his father, Stanislaw Kosiorek.”   Memorandum of Decision re:  Defendants' Motion to Dismiss (Young, J.).¹

The defendant, Stanley Kosiorek, has moved for summary judgment on the plaintiff's three-count revised complaint, dated September 14, 2011, on the basis of res judicata, contending that the counts in the revised complaint have been fully litigated and decided in a prior action between the plaintiff and the defendants.   The revised complaint is in three counts;  the first count is for breach of contract against Kosiorek, individually;  the second count is for breach of covenant of good faith and fair dealing against both the defendant, Kosiorek in his individual capacity, and in his capacity as executor;  and the third count is one of indemnity against Kosiorek in his individual capacity.   The plaintiff concedes that the doctrine of res judicata bars any action against Kosiorek as executor, so this decision only addresses the claims against the defendant Kosiorek in his individual capacity.²

On October 13, 2010, a jury returned a verdict in favor of Stanley Kosiorek, as Executor of the estate of Stanislaw Kosiorek, against the plaintiff, Jacek Smigelski on five separate counts:  breach of contract, breach of good faith and fair dealing, breach of fiduciary duty, CUTPA, and civil conversion.   Kosiorek v. Smigelski, Superior Court, judicial district of New Britain, Docket No. CV 07 4014607 (October 13, 2010) (“Prior Action”).   The jury awarded damages in the amount of $54,833.33, and based upon the count of civil conversion, awarded treble damages.³  In the previous action, Smigelski had filed a counterclaim on the following counts:  breach of contract, estoppel, common law charging lien, indemnification, and breach of covenant of good faith and fair dealing.   Prior to charging the jury, the court issued a direct verdict against the Smigelski's counterclaim on all counts.⁴

Both the prior action and this action stem from the same set of facts.   The plaintiff, in his capacity as an attorney, represented the Kosiorek family in a dispute involving the estate of Stanislaw Kosiorek and an asset of the estate, namely a piece of property.   The plaintiff had entered into a fee agreement with Stanley Kosiorek both in his capacity as Executor of the estate of Stanislaw Kosiorek as well as his capacity individually.   After concluding certain matters handled by Smigelski, he paid himself a fee out of the estate funds that he was holding.   The Plainville Probate Court determined that the fee was excessive, and that a lesser amount was allowable out the estate funds for the work done by the plaintiff and ordered the excess money returned to the estate.   Smigelski took the position that he had charged and paid himself a reasonable amount pursuant to the fee agreement.   He refused to acquiesce in the finding of the Probate Court by adjusting his fee and refunding the difference to the estate.

In the counterclaim in the prior action, as well as in the complaint in this action, the plaintiff is alleging that the defendant breached the fee agreement by failing to pay a fee based upon an appraisal amount of the property, which would have resulted in Smigelski collecting an additional approximately $30,000.   Smigelski alleges that this failure to pay this higher amount was also a breach of the covenant of good faith and fair dealing.   As to his indemnification claim, the plaintiff alleges that the defendant should indemnify Smigelski from his obligation to reimburse the estate for the amount the Probate Court has directed the plaintiff to refund.

“Summary judgment is the appropriate method for resolving a claim of res judicata.”  Sotavento Corp. v. Coastal Pallet Corp., 102 Conn.App. 828, 833, 927 A.2d 351 (2007).  “Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Unifund CCR Partners v. Schaeppi, 126 Conn.App. 370, 379–80, 11 A.3d (2011).

The defendant moves for summary judgment on the ground that this action is barred by the doctrine of res judicata, inasmuch as the plaintiff is attempting to relitigate claims that were previously litigated to conclusion in the prior action.   He asserts that the facts relating to the counts in this action have been fully developed and litigated and decided in the prior action.

“The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction ․ If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made ․ Res judicata bars not only subsequent relitigation of a claim previously asserted, but subsequent relitigation of any claims relating to the same cause of action ․ which might have been made.”  (Citation omitted;  internal quotation marks omitted.)  Massey v. Branford, 119 Conn.App. 453, 464–65, 988 A.2d 370, cert. denied, 295 Conn. 921, 991 A.2d 565 (2010).   “The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.”  (Emphasis added.)  Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589, 674 A.2d 1290 (1996).

“[T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding ․” (Internal quotation marks omitted.)  State v. Osuch, 124 Conn.App. 572, 581, 5 A.3d 976, cert. denied, 299 Conn. 918, 10 A.3d 1052 (2010).  “The essential concept of the modern rule of claim preclusion is that a judgment against [the] plaintiff is preclusive not simply when it is on the merits but when the procedure in the first action affords [the] plaintiff a fair opportunity to get to the merits.”  (Internal quotation marks omitted.)   Close, Jensen & Miller, P.C., v. Fidelity National Title Ins. Co., 130 Conn.App. 174, 183, 21 A.3d 952 (2011).

Both this action and the prior action involve direct claims asserted by the plaintiff that there was a breach of a fee agreement.   The difference between count one of the revised complaint in this action and count one of the counterclaim is the addition of different theories in which the defendant is alleged to have breached the fee agreement.   As to count two, it is apparent when comparing the language of the counterclaim in the prior action to count two in this action, the language of the counterclaim was simply copied and additional theories were added, as in count one.   Because the plaintiff failed in his burden of producing sufficient evidence of these claims in the prior action whereby the court directed a verdict on both of these counts, the doctrine of res judicata prevents the relitigation of these counts in this action, and the plaintiff is barred from raising these claims again.

As to the count for indemnification, the claims made therein are the exact same allegations made in the prior action, and the plaintiff is barred from bringing this count in this action.

The plaintiff argues that the claims he is asserting in this action are against Stanley Kosiorek, individually, and the prior action involved Stanley Kosiorek in his capacity as executor.   Therefore, Stanley Kosiorek is individually liable on the debts that he incurred in administration of the estate, including prosecution of the cases which involved the plaintiff's legal representation.   Smigelski asserts that res judicata only is applicable if the former or prior action was between the same parties, or those in privity with them.⁵

Res judicata and collateral estoppel operate only against the same parties to the prior action or those in privity with them.  Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 812–13, 695 A.2d 1010 (1997).  “In determining whether privity exists, [the court] employ[s] an analysis that focuses on the functional relationships of the parties.   Privity is not established by the mere fact that persons may be interested in the same question or in proving or disproving the same set of facts.   Rather, it is, in essence, a shorthand statement of the principle that collateral estoppel should be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion.”  Id., 814.  “It is not essential in the application of the doctrine of res [judicata], however, that a party to be bound by the former adjudication should have been a formal party thereto or privy to a formal party.   It is sufficient if he, having an interest in the subject matter, participated openly and activity in so much of the former litigation as led to the judgment adjudicating the cause of action in question.”  (Internal quotation marks omitted.)  Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 789–90, 967 A.2d 1 (2009).

The relationship between Kosiorek, individually, and Kosiorek, in his capacity as executor, is sufficiently close so as to justify the application of res judicata, particularly with the claims being asserted by the plaintiff.   The plaintiff is asserting a breach of contract claim based upon the fee agreement which was signed by Kosiorek in his dual capacities—individually and as executor.   The claims being made are essentially the same in both this action and the prior action, and although Kosiorek individually was not a party to the prior action, he had a sufficient interest in the litigation and subject matter, as well as having participated “openly and actively in so much of the litigation as led to the judgment adjudicating the cause of action in question.”  Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., supra, 290 Conn. 789–90.

The claims being raised in this action are essentially the same claims that were raised and adjudicated in the prior action.   Furthermore, privity exists between the parties as to the claims and issues being raised so that the doctrine of res judicata bars this action.

For the reasons stated above, the motion for summary judgment is granted.

Swienton, J.

FOOTNOTES

FN1. For a synopsis of all four actions, see Memorandum of Decision re:  Defendants' Motion to Dismiss (April 1, 2011)..  FN1. For a synopsis of all four actions, see Memorandum of Decision re:  Defendants' Motion to Dismiss (April 1, 2011).

FN2. Therefore, any reference to “the defendant” will apply to Kosiorek in his individual capacity..  FN2. Therefore, any reference to “the defendant” will apply to Kosiorek in his individual capacity.

FN3. In addition, the plaintiff was awarded $71,696 in attorney's fees and costs for a total judgment of $298,458.29.   Smigelski filed an appeal on November 26, 2010, which was dismissed on February 9, 2011.   He filed a second appeal on December 17, 2010, which appeal is pending..  FN3. In addition, the plaintiff was awarded $71,696 in attorney's fees and costs for a total judgment of $298,458.29.   Smigelski filed an appeal on November 26, 2010, which was dismissed on February 9, 2011.   He filed a second appeal on December 17, 2010, which appeal is pending.

FN4. The court conducted the charging conference on the record, and after which concluded that the defendant had failed to present sufficient evidence to support his counterclaims.   Therefore, the court refused to charge on any of the five counts contained in the counterclaim, thereby directing a verdict on those counts..  FN4. The court conducted the charging conference on the record, and after which concluded that the defendant had failed to present sufficient evidence to support his counterclaims.   Therefore, the court refused to charge on any of the five counts contained in the counterclaim, thereby directing a verdict on those counts.

FN5. The plaintiff also asserts in his opposition brief that he is “not in privity with either Stanley Kosiorek executor or in his individual capacity.   Stanley Kosiorek is not in privity with Stanley Kosiorek individually.”   The court does not agree with this assertion..  FN5. The plaintiff also asserts in his opposition brief that he is “not in privity with either Stanley Kosiorek executor or in his individual capacity.   Stanley Kosiorek is not in privity with Stanley Kosiorek individually.”   The court does not agree with this assertion.

Swienton, Cynthia K., J.